construction

Construction

The process by which the meaning of an ambiguous provision of a statute, written document, or oral agreement is determined.

A judge usually makes a construction of an unclear term in a document at issue in a case that involves a dispute as to its legal significance. The judge examines the circumstances surrounding the provision, laws, other writings, verbal agreements dealing with the same subject matter, and the probable purpose of the unclear phrase in order to conclude the proper meaning of such words. Once the judge has done so, the court will enforce the words as construed. However, for language that is plain and clear, there cannot be a construction.

When ambiguous language is given its exact and technical meaning, and no other equitable considerations or reasonable implications are made, there has been a strict or literal construction of the unclear term.

A liberal or equitable construction permits a term to be reasonably and fairly evaluated so as to implement the object and purpose for which the document is designed. This does not mean that the words will be strained beyond their natural or customary meanings.

A rule of construction is a principle that either governs the effect of the ascertained intention of a document or agreement containing an ambiguous term or establishes what a court should do if the intention is neither express nor implied.A regular pattern of decisions concerning the application of a particular provision of a statute is a rule of construction that governs how the text is to be applied in similar cases.

The constitutionality of an ambiguous statute is a Question of Law and a matter of construction within the province of the court. The meaning of the language of the statute must be determined in light of its objectives, purposes, and practical effect as a whole. If a statute is so ambiguous that a judge cannot make a reasonable construction of its disputed provisions, and a reasonable person could not determine from reading it what the law orders or prohibits, it is void for vagueness because it violates the guarantee of Due Process of Law.

Some states have codified terms that had in the past been subject to repeated judicial construction. The need for court proceedings to determine the real meaning of some terms has been eliminated by enactment of statutes that give specific meanings—such as specifying that "calendar day" means a twenty-four hour period starting on midnight of one date and ending midnight of the next day.

Cross-references

construction

n. the act of a lawyer or court in interpreting and giving meaning to a statute or the language of a document such as a contract or will when there is some ambiguity or question about its meaning. In constitutional law, there is a distinction between liberal construction (broad construction) and strict construction (narrow construction.) Liberal construction adds modern and societal meanings to the language, while strict construction adheres closely to the language without interpretation. (See: strict construction)

construction

the process of interpreting a document or statute.

CONSTRUCTION, practice. It is defined by Mr. Powell to be "the drawing in
inference by the act of reason, as to the intent of an instrument, from
given circumstances, upon principles deduced from men's general motives,
conduct and action." This definition may, perhaps, not be sufficiently
complete, inasmuch as the term instrument generally implies something
reduced into writing, whereas construction, is equally necessary to
ascertain the meaning of engagements merely verbal. In other respects it
appears to be perfectly accurate. The Treatise of Equity, defines
interpretation to be the collection of the meaning out of signs the most
probable. 1 Powell on Con. 370.
2. There are two kinds of constructions; the first, is literal or
strict; this is uniformly the construction given to penal statutes. 1 Bl.
Com. 88; 6 Watt's & Serg. 276; 3 Taunt. 377. 2d. The other is liberal, and
applied, usually, to remedial laws, in order to enforce them according to
their spirit.
3. In the supreme court of the United States, the rule which has been
uniformly observed in construing statutes, is to adopt the construction
made by the courts of the country by whose legislature the statute was
enacted. This rule may be susceptible of some modification when applied to
British statutes which are adopted in any of these states. By adopting them,
they become our own, as entirely as if they had been enacted by the
legislature of the state.
4. The received construction, in England, at the time they are admitted
to operate in this country - indeed, to the time of our separation from the
British empire - may very properly be considered as accompanying the
statutes themselves, and forming an integral part of them. But, however we
may respect the subsequent decisions (and certainly they are entitled to
great respect,) we do not admit their absolute authority. If the English
courts vary their construction of a statute, which is common to the two
countries, we do not hold ourselves bound to fluctuate with them. 5 Pet. R.
280.
5. The great object which the law has in all cases, in contemplation,
as furnishing the leading principle of the rules to be observed in the
construction of contracts, is, that justice is to be done between the
parties, by enforcing the performance of their agreement, according to the
sense in which it was mutually understood and relied upon at the time of
making it.
6. When the contract is in writing, the difficulty lies only in the
construction of the words; when it is to be made out by parol testimony,
that difficulty is augmented by the possible mistakes of the witnesses as to
the words used by the parties; but still, when the evidence is received, it
must be assumed as correct, when a construction is to be put upon it. The
following are the principal rules to be observed in the construction of
contracts. When. the words used are of precise and unambiguous meaning,
leading to no absurdity, that meaning is to be taken as conveying the
intention of the parties. But should there be manifest absurdity in the
application of such meaning, to the particular occasion, this will let in
construction to discover the true intention of the parties: for example;
1st. When words are manifestly inconsistent with the declared purpose and
object of the contract, they will be rejected; as if, in a contract of sale,
the price of the thing sold should be acknowledged as received, while the
obligation of the seller was not to deliver the commodity. 2 Atk. R. 32. 2d.
When words are omitted so as to defeat the effect of the contract, they will
be supplied by the obvious sense and inference from the context; as, if the
contract stated that the seller, for the consideration of one hundred
dollars, sold a horse, and the buyer promised to pay him for the said horse
one hundred, the word dollars would be supplied. 1 3d. When the words, taken
in one sense, go to defeat the contract, while they are susceptible of
another construction which will give effect to the design of the parties,
and not destroy it, the latter will be preferred. Cowp. 714.
8.-2. The plain, ordinary, and popular sense of the words, is to be
preferred to the more unusual, etymological, and recondite meaning or even
to the literal, and strictly grammatical construction of the words, where
these last would lead to any inefficacy or inconsistency.
9.-3. When a peculiar meaning has been stamped upon the words by the
usage of a particular trade or place in which the contract occurs, such
technical or peculiar meaning will prevail. 4 East, R. 135. It is as if the
parties in framing their contract had made use of a foreign language, which
the court is not bound to understand, but which on evidence of its import,
must be applied. 7 Taunt. R. 272; 1 Stark. R. 504. But the expression so
made technical and appropriate, and the usage by which it has become so,
must be so clear that the court cannot entertain a doubt upon the subject. 2
Bos. & P. 164; 3 Stark. Ev. 1036: 6 T. R. 320. Technical words are to be
taken according to their approved and known use in the trade in which the
contract is entered into, or to which it relates, unless they have
manifestly been understood in another sense by the parties. Vide 16 Serg. &
R. 126.
10.-4. The place where a contract has been made, is a most material
consideration in its construction. Generally its validity is to be decided
by the law of the place where it is made; if valid there, it is considered
valid every where. 2 Mass. R. 88; 1 Pet. R. 317 Story, Confl. of Laws, 2; 4
Cowen's R. 410, note; 2 Kent, p. 39, 457, in the notes 3 Conn. R. 253, 472;
4 Conn. R. 517. Its construction is to be according to the laws of the place
where it is made for example, where a note was given in China, payable
eighteen months after date, without any stipulation as to the amount of
interest, the court allowed the Chinese interest of one per centum per month
from the expiration of the eighteen mouths. 1 Wash. C. C. R. 253 see 12.
Mass. R. 4, and the article Interest for Money.
11.-5. Previous conversations, and all that passes in the course of
correspondence or negotiation leading to the contract, are entirely
superseded by the written agreement. The parties having agreed to reduce the
terms of their contract to writing, the document is constituted as the only
true and final exposition of their admissions and intentions; and nothing
which does not appear in the written agreement will be considered as a part
of the contract. 5 Co. R. 26; 2 B. & C. 634; 4 Taunt. R. 779. But this rule
admits of some exceptions; as, where a declaration is made before a deed is
executed, showing the design with which it was to be executed, in cases of
frauds; 1 S. & R. 464; 10 S. & R. 292; and trusts, though no trust was
declared in the writing. 1 Dall. R. 426; 7 S. & R. 114.
12.-6. All contracts made in general terms, in the ordinary course of
trade, are presumed to incorporate the usage and custom of the trade to
which they relate. The parties are presumed to know such usages, and not to
intend to exclude them. But when there is a special stipulation in
opposition to, or inconsistent with the custom, that will of course prevail.
Holt's R. 95.
13.-7. When there is an ambiguity which impedes the execution of the
contract, it is first, if possible, to be resolved, on a view of the whole
contract or instrument, aided by the admitted views of the parties, and, if
indispensable, parol evidence may be admitted to clear it, consistently with
the words. 1 Dall. R. 426; 4 Dall. R. 34 0; 8 S. & R. 609.
14.-8. When the words cannot be reconciled with any practicable or
consistent interpretation, they are to be considered as not made use of
"perinde sunt ac si scripts non essent."
15. It is the duty of the court to give a construction to all written
instruments; 3 Binn. R. 337; 7 S. & R. 372; 15 S. & R. 100 4 S. & R. 279 8
S. & R. 381; 1 Watts. R. 425; 10 Mass. R. 384; 3 Cranch, R. 180 3 Rand. R.
586 to written evidence 2 Watts, R. 347 and to foreign laws, 1 Penna. R.
388. For general rules respecting the construction of contracts, see 2 Bl.
Com. 379; 1 Bouv. Inst. n. 658, 669; 2 Com. on Cont. 23 to 28 3 Chit. Com.
Law, 106 to 118 Poth. Oblig. P. 1, c. 1, art. 7; 2 Evans' Poth. Ob. 35; Long
on Sales, 106; 1 Fonb. Eq. 145, n. b Id. 440, n. 1; Whart. Dig. Contract, F;
1 Powell on Contr. 370 Shepp. Touchst. c. 5 Louis. Code, art. 1940 to 1957;
Corn. Dig. Merchant, (E 2,) n. j.; 8 Com. Dig. tit. Contract, iv.; Lilly's
Reg. 794; 18 Vin. Abr. 272, tit. Reference to Words; 16 Vin. Abr. 199, tit.
Parols; Hall's Dig. 33, 339; 1 Ves. Jun. 210, n.; Vattel, B. 2, c. 17; Chit.
Contr. 19 to 22; 4 Kent. Com. 419; Story's Const. Sec. 397-456; Ayl. Pa d.
B. 1, t. 4; Rutherf. Inst. B. 2, c. 7, Sec. 4-11; 20 Pick. 150; 1 Bell's
Com. 5th ed. 431; and the articles, Communings; Evidence; Interpretation;
Parol; Pourparler. As to the construction of wills, see 1 Supp. to Ves. Jr.
21, 39, 56, 63, 228, 260, 273, 275, 364, 399; 1 United States Law Journ.
583; 2 Fonb. Eq. 309; Com. Dig. Estates by Devise. N 1; 6 Cruise's Dig. 171
Whart. Dig. Wills, D. As to the construction, of Laws, see Louis. Code, art.
13 to 21; Bac. Ab. Statutes, J; 1 Bouv. Inst. n. 86-90; 3 Bin. 858; 4 Bin.
169, 172; 2 S. & R. 195; 2 Bin. 347 Rob. Digest, Brit. Stat. 370; 7 Term.
Rep. 8 2 Inst. 11, 136; 3 Bin. 284-5; 3 S. & R. 129; 1 Peere Wms. 207; 3
Burr. Rep. 1755-6; 3 Yeates, 108; 11 Co. 56, b; 1 Jones 26; 3 Yeates, 113
117, 118, 120; Dwarris on Statutes.
16. The following words and phrases have received judicial construction
in the cases referred to. The references may be useful to the student and
convenient to the practitioner.

Acceptance. There is your bill, it is all right. 1 Esp. 17. If you will send
it to the counting-house again, I will give directions for its being
accepted. 3 Camp. 179. What, not accepted ? We have had the money, and
they ought to have been paid; but I do not interfere; you should see my
partner. 3 Bing. R. 625; S. C. 13 Eng. C. L. R. 78. The bill shall be duly
honored, and placed to the drawer's credit. 1 Atk. 611. Vide Leigh's N. P.
420.

Accepted. 2 Hill, R. 582.

According to the bill delivered by the plaintiff to the defendant. 3 T. R.
575.

Time. Till she arrives. From her beginning to load. On the ship's arrival.
And is there moored twenty-four hours in good safety. 8 Chit. Com. Law,
462. Within four days. 15 Serg. & Rawle, 43. Time being. Ang. Corp. 284.

Title. An indefeasable title in fee simple, such as the state makes. 3 Bibb,
R. 317; 4 Shepl. R. 164.

To a stream. 3 Sumn. R. 170.

To be begotten. 1 M. & S. 124.

To be by her freely possessed and enjoyed. 12 S. & R. 56; Cows. 352.

To be signed and published by her, in the presence of, and to be attested by
two or more credible witnesses. Curt. Eccl. R. 1.

To be paid when in funds. Minor's R. 173; 7 Greenl. R. 126.'

To them. 9 Watts, 351, 352.

To do the needful. 4 Esp. R. 66.

To, from or by. 1 Shepley's R. 198.

To settle. 2 Miles, R. 1.

To his knowledge and belief. 1 H. Bl. 245.

To the best of his knowledge and belief. 8 T. R. 418; 1 Wils. 232.

To the legatees above named. 17 S. & R. 61.

To the order. 1 Watts. & Serg. 418.

To render a fair and perfect account, in writing, of all sums received. 1
Dougl. R. 382

To sue. 3 B. & C. 178, 1083.

To wait awhile. 1 Penna. R. 385.

Toll. 2 Show,. 34.

Took the oath in such case required by the act of congress. 5 Leigh's R.
743.

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